SUPREME COURT SUMMONS MUSHARRAF

C O N F I D E N T I A L SECTION 01 OF 02 ISLAMABAD 001684

SIPDIS

E.O. 12958: DECL: 07/23/2019
TAGS: PGOV PREL PK
SUBJECT: SUPREME COURT SUMMONS MUSHARRAF

Classified By: Anne W. Patterson for reasons 1.4 (b),(d).


1. (C) Summary: Pakistan,s Supreme Court is hearing a case,
which actually combines two separate petitions, that may be
the first of several legal challenges to the
constitutionality of former President Musharraf,s actions on
November 3, 2007, when he suspended the constitution,
declared a state of emergency, and relieved some 60 Pakistani
judges of their positions. In a July 22 session, the Court
served notice to former President Musharraf to appear in
court to defend his November 2007 actions. Should the court
rule against Musharraf, several additional cases challenging
decisions made during his presidency may follow. A ruling
against Musharraf in these cases may ultimately impinge on
the interests of the ARMY and President Zardari. End summary.


2. (SBU) The Supreme Court is entertaining two different
petitions challenging former President Musharraf's action:
one filed by the Sindh High Court Bar Association (SHCBA)
challenging the dismissal of two Sindh High Court judges by
Musharraf, and the second filed by prominent Islamabad
attorney (who often handles PML-N chief Nawaz Sharif's legal
matters) Akram Sheikh challenging the appointment of judges
who took an oath under the Provisional Constitutional Order
(PCO). The SHCBA filed the current case against the federal
government demanding the reinstatement of two Sindh High
Court judges dismissed by Musharraf during the State of
Emergency SOE) in November 2007. At the same time, Supreme
Court Chief Justice Iftikhar Chaudhry said that the justices
will accept Sheikh's appeal of a previous November 2007
decision, which validated the SOE and declared that judges
who had not renewed their oaths under Musharraf,s November
3, 2007 PCO ceased to be members of the Court. Chaudhry said
that the Court will combine the Sheikh petition with the
SHCBA petition, and that both will now be legally referred to
as the "Tikka Iqbal" case.


3. (U) In its July 22 hearing the Court served notice to
former President Musharraf to appear before the Court either
in person or through his lawyers on July 29. It was argued
that Musharraf should be given a chance to defend himself
because the intention behind his November 3 emergency
proclamation has been challenged by the petitioners, though
he is not named as a defendant in the petition. Earlier,
Chaudhry had indicated that the Court would arrive at a
decision by July 24. However, during the July 22 hearing the
Court deemed it "legally pertinent" to give Musharraf a
chance for his defense. Musharraf and his lawyers have
refused to comment.


4. (C) Whether or not Musharraf appears in his defense, the
Court seems inclined to rule against his actions. A
thirteen-judge bench of the Supreme Court led by Chaudhry is
hearing the case. None of the judges on that panel took
oaths under Musharraf's PCO, a fact that will likely bias
them against Musharraf. Moreover, Chaudhry publicly likened
the endorsement of Musharraf's November 3 actions by the
Court to the 1958 endorsement of the first martial law in
Pakistan's history by the then Supreme Court. "It is now the
responsibility of the judiciary to get the constitution and
the law strictly adhered to," said the Chief Justice.
Chaudhry described the two cases as a constitutional matter
when he joined them together, and though the petitions do not
seek to convict Musharraf, the implications of the decisions
will open the floodgates for petitions against Musharraf
directly.


5. (SBU) Attorney General Latif Khosa has also testified
before the court that the current Pakistan People's Party
(PPP)-led government did not endorse the actions of President
Musharraf and stated that the government would not support
Musharraf in the court proceedings. In addition to his
apparent bias against Musharraf in Court, Chaudhry has
publicly praised parliament for not ratifying the November 3
emergency proclamation.


6. (C) On July 23, Prime Minister Gilani told the Ambassador
that many thought it would be difficult for Musharraf to
return to Pakistan. He said that Nawaz Sharif was very
"bitter" about his treatment during the Musharraf regime,
stopping short of saying but implying that Sharif had
influenced the court's decision. The PM said that he believed
the courts were going to repeal the 17th amendment, which
would allow for a third term for Nawaz. He said the

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amendment (which would restore the powers to the prime
minister) should be repealed by the parliament but he was
certain the courts were going to beat them to it. The PM
said (quite sincerely) that he had tried to build a political
coalition and had been pleased at his success in obtaining
unanimous votes on many issues and bringing PML-N along.


7. (C) Comment: Chief Justice Chaudhry is determined to open
the issue of Musharraf's past controversial decisions, and
from Chaudhry's statements and the hearing thus far, a
judgment against Musharraf's actions is likely. The result
of such a decision would be the restoration of the two Sindh
judges and the invalidation of all the judges who took the
PCO oath. Following such a decision the PCO judges would be
compelled to resign, or face additional challenges to their
authority. More broadly, once the PCO judges are purged from
the Court, a newly strengthened and like-minded Court would
be free to take up the issue of the 17th Amendment, the
National Reconciliation Ordinance (NRO) or other petitions
charging Musharraf with treason. The NRO pardoned many
prominent politicians, including Asif Zardari, and paved the
way for Zardari's presidency and Zardari will be determined
to prevent a court action that undermines his legitimacy.
For their part, Chief of ARMY Staff Kayani and the military
will oppose any effort that ultimately leads to changes of
treason against Musharraf because of their concern that
nothing be done that would damage the Army's standing in the
country. As the cases heat up, therefore, Chaudhry is likely
to face political pressure to moderate his attacks on
Musharraf or Zardari. Musharraf is not likely to return to
Pakistan, and in the face of these political realities, we
believe it is still likely that the Court will stop short of
decisions that cross either Zardari's or Kayani's redlines.
End Comment.
PATTERSON